Wagner 


The Relations 
of 
Session and Trustees 


Library of Che Theological Seminary 


PRINCETON * NEW JERSEY 


CP 


PRESENTED BY 


The Estate of 
Victor H. Lukens 


KF 4869 .P7 w2 1906 
Wagner, Hugh D., 
The relations 


Of session and 
trustees 


THE RELATION. 


. FEB 11 1953 


G Ng 
ISSION AND TRUS 


OF 


; 


PRESBYTERIAN FORM OF GOVERNMENT CONSID- 
RED IN ITS BEARING ON THE CONTROL oF Ec- 
| CLESIASTICAL PROPERTY; WITH PARTICU- 
LAR REGARD TO STATE LAWS IN 
RELATION TO INCORPORATED 
ECCLESIASTICAL SOCIETIES, 


ra 
By HUGH K. WAGNER. 


PHILADELPHIA } 
Hee RESBYTERIAN BOARD OF PUBLICATION. 
1906. 


Copyright, 1906, by é 
The Trustees of The Presbyterian Board of Publication anc 
Sabbath-School Work 


INDEX 


PAGE 

PROALU eK E LUSLGeS MUSE ACE AS \, '< ats s sc, e'e.0 eo 61s «'s 26 
pee DSSS TMEEIACE ASoI= ss, Sicin sere 0.0 85 c's ons 8 27 
Buudiges: Church, usecof oo. cence +s. Liens 
eChurche meaning of term...) os... oes. cots 22, 23 
Committee on Temporalities, report of, ........ 12 
Congregation, meaning of term, .......... 22, 23 
Corporation) meaning Of term, sel... s 6s sls «+ 22, 23 
ROEM ATER DOUVS mortars hale oun be ae avas coke. ens 25 
DGACOMS ama tere a Beane AiG ec eelemiete © roa erates 13-16 
EOE ROT Stine Sey aires hur wlotxsaiad ere nla oa aed Bese CaO 
Elders. mentioned in’Scripturé, ...... 2000. 0fees 8 
BIMATI CES Merrett alee Pen aciee oie nae 28, 20, 44-46 
Hormrots Governiinenit lt vires owas eds cicaters tees 7-19 
Crevice SAGSEIN Dy secrier ction sehr oe eaten esse ok 7-21 
re one 023° 9 TR [Bel Neha Sure a Semen ie GS HS i a EAR 7 
A LCE PE DINSLICAl Pere han Oe seer ey tsbrore nan 33 
Law, Gigi and otate;.,<.. 55 ss 15; 10; 21,.22, 23, 33 
IMEEISICHE SEE Sete rnereack 5 le ON aes oe ae 10, 43 
- Report of Committee on Temporalities, ........ II 
Roberts’ Manual cited, ..9, 27, 28, 30, 32, 33, 38, 39 
[icta) oS cg U2) Be pele) Cote 8 Re Ce Sn a a 45 


6 INDEX 


Session, authority Olas oe Q, 10, 18, 19, 24, 25, 27 

Relation to Trustees, ....27, 37, 39, 41, 42 
Society, meaning of term,). <2. 4a... 6 bs pene 22 
Spiritual: Interests. A ase eo eae eee ee 10, 39 
Temporalities, Committee on, report of,........ II 
Title to church property, ........26, 28, 30, 32, 37 
Trustees, origin of custom of having, ........ ey. 
Trustees, Fae ts ae ke seam eee 12-14, 16-29, 37 
Trustees,Power ofc. 2s ofan. ena ree 3294 
Trustees, relation to Session, ..... 27,1375 30, Alma 


Trustees and Session cannot act on Temporal 
Matters in Joint Meeting, but Board of 
Trustees must separately pass thereon,...... 27 


THE RELATIONS OF SESSION 
AND TRUSTEES 


The fundamental principle of church gov- 
ernment is expressed in I Cor. 14: 40: “Let 
all things be done decently-and in order.” 

It is not peculiar to the Presbyterian 
Church to have a distinctive form of church 
government or mode of procedure. Every 
denomination has its own particular way of 
conducting its affairs. Naturally the Con- 
gregational way of managing the matters of 
that body is peculiar to that sect. In like 
manner the Presbyterian Church has its own 
way of doing things. 

To the officers of a Presbyterian Church, 
it is important, therefore, to know what the 
Presbyterian method is. This paper is 
merely an endeavor to set forth plainly some 
of those principles of Presbyterian polity in 
which members of the Session and members 


i 


8 THE RELATIONS OF 


of the Board of Trustees of a Presbyterian 
Church may be supposed to be jointly inter- 
ested. 

In the first place, it may not be amiss to 
say that, while “elders” are mentioned in the 
New Testament (I Tim. 5:17; Titus 1:5; 
I Pet. 5:1; Jas. 5:14; Acts 20: 17), trustees 
are not. Evidently, therefore, the arrange- 
ment whereby certain functions are com- 
mitted to trustees is one of human expedi- 
ency merely, being sometimes necessitated 
by the civil law of the place where the parti- 
cular church is located, though not by the 
ecclesiastical law. In fact, there is no defi- 
nite provision in the “Form of Government” 
of the Presbyterian Church for trustees, and 
their existence is only indirectly recognized 
by the “Form of Government” and Acts of 
the General Assembly. The origin of the 
custom of having trustees for the property 
of Presbyterian churches was as follows: 
“The Presbyterian churches in the Ameri- 


can Colonies were not churches which were — 


maintained by the Colonial or British 
governments. The established or State 
churches in those early days were the Con- 
gregational in New England, the Dutch Re- 


ell i EE 


SESSION AND TRUSTEES 9 


formed in New York, and the Protestant 
Episcopal in a number of the Colonies. As 
a consequence, Presbyterian churches were 
obliged to provide for the care of their prop- 
erty by conveyances to individuals, who were 
regarded as trustees, and it was not until 
about the middle of the eighteenth century 
that charters began to be issued to them. 
The trustee system finds its origin, therefore, 
in the antagonism of the State in the early 
period of American history to the Presby- 
terian and other so-called dissenting 
churches. With the achieval of American 
independence came religious liberty, and leg- 
islation which enabled all the churches 
freely and adequately to hold and manage 
their temporalities as churches” (Roberts’ 
“Manual for Ruling Elders,” p. 378.) 

We must have recourse to authoritative 
enactments and judgments of the Presby- 
terian Church in the U. S. A. (acting 
by its General Assembly), and expressions 
by other Presbyterian authorities, as well as 
to decisions of the civil courts, etc., to find in 
what way the respective relations of Session 
and Trustees to each other and to the church 
have been defined. 


IO THE RELATIONS OF 


Fundamental as to the jurisdiction and 
authority of the Session may be quoted from 
Chapter IX, Section 6, of the Form of Gov- 
ernment (pages 360, 361), the following: 
“The church session is charged with main- 
taining the spiritual government of the con- 
gregation; for which purpose they have 
power'to . . . supervise the Sabbath 
school and the various societies or agencies 
of the congregation.” 

In 1898, an amendment to the Form of 
Government was adopted by the General 
Assembly, constituting Section 7, and imme- 
diately following the section from which I 
have just quoted, said amendment reading as 
follows :— 

“Subject to the provisions of the Directory for 
Worship, the Session shall have and exercise 
exclusive authority over the worship of the con- 
gregation, including the musical service; and 
shall determine the times and places of preaching 
the Word and all other religious services. They 
shall, also, have exclusive authority over the uses 
to which the church building may be put, but 
may temporarily delegate the determination of 
such uses to the body having management of the 
temporal affairs of the church, subject to the 


superior authority and direction of the Session” 
(Form of Government, p. 361). 


SESSION AND TRUSTEES uA 


The reason for the enactment -of the 
amendment just set forth is manifestly to 
be found in the recitals of an Act of the 
General Assembly in 1893 (1893 Minutes, 
p. 90), as follows :— 


“The General Assembly takes notice that the 
exclusive authority of the Session over the wor- 
ship of the Church, including not only the times 
and places of preaching the Word, but also the 
music and the use of the church buildings, is not 
sufficiently appreciated by the Chufch at large, 
and that there are frequent complaints that Trus- 
tees of congregations assume powers and author- 
ity, especially over music and the use of church 
buildings, which are not warranted by, but in con- 
flict with, the Constitution of the Church. 

“The Assembly enjoins upon the churches 
loyal adherence to our Form of Government, pro- 
viding that the authority of the Session over all 
matters of worship is paramount, and at the same 
time recommends that all such questions be 
treated by the Session with Christian tact and 
courtesy in the spirit of love and forbearance” 
(1893 Minutes, p. 90; “The Constitution of the 
Presbyterian Church in the U. S. A.,” ed. 1906, 
pp. 468, 469). 

As generally illuminative of the subject 
with which we are dealing, the Report of the 
Special Committee on the Temporalities of 


the church which recommended the adoption 


I2 THE RELATIONS OF 


of the act just set forth, may very well here 
follow, or, at least, the major portion there- 
of :— 


“The Committee to which was referred the 
Temporalities of the Church, met in Washington, 
D. C., December 14, 1892, and, after full delibera- 
tion and some correspondence and consultation, 
have agreed upon the following Report, which 
is hereby submitted to the General Assembly: 

“Overtures from thirty-two Presbyteries reached 
the last Assembly, asking ‘that some proper 
inquiry be made into the generally prevalent 
methods of managing the temporal affairs of our 
churches by means of Boards of Trustees, and 
that if these methods are found to be defective 
or injurious, that some means shall be taken to 
amend them.’ Twenty-nine of these petitioning 
Presbyteries ‘are strongly of the opinion that 
many features of the present methods of man- 
agement need such amendment, and that to be 
effective it may require some amendment to the 
Form of Government, defining the proper fune- 
tions of such Trustees, and their precise relations 
to the deacons and to the Session’ (see ‘Minutes’ 
of Assembly of 1892, pp. 52-58), and they there- 
fore ask ‘that a thorough inquiry be made into 
the whole matter, with a view to whatever subse- 
quent action may be found necessary.’ 

“In considering these Overtures, the following 
considerations immediately became prominent :— — 

“7, The Committee were embarrassed by the 


SESSION AND TRUSTEES 13 


fact that they possessed neither the power nor 
the means of making a thorough official investi- 
gation into the methods of Trustee management 
in use in our congregations. There are no off- 
cial data accessible to the Assembly accurately 
informing us what churches have Trustees, and 
under what charters, and with what connection 
with the deacons or the Session they exercise 
their powers. 

“2. The very presentation of the Overtures, 
however, demonstrates beyond question that there 
is a widespread impression or conviction existing 
throughout the Church that the present system 
of Trustee management is not altogether satis- 
factory, and ought, if possible, to be amended. 

“3. To this fact further witness is borne by 
the report submitted to the last Assembly (‘Min- 
utes, p. 168) by the Special Committee on the 
Diaconate, which, while reciting the useful ends 
secured by the present system of Trustee man- 
agement, points out that ‘it does not conform 
- wholly to the permissive instruction of the Form 
of Government, authorizing us to commit the 
charge of the temporal affairs of the Church to 
deacons’ (Form of Government, Chap. vi.). This 
report recommends to the churches ‘a stronger 
emphasis upon the opportunity and propriety 
expressed in the language of the book for the 
sake of a more consistent organization of our 
official life.’ 

“4. In addition to this, members of the Com- 
mittee had much private information, gained in 


14 THE RELATIONS OF 


part by laborious inquiry previous to their meet- 
ing, and showing clearly that there are certain 
defects in our mode of administering congrega- 
tional finances which are hable to become, and 
often do become, injurious to the peace and 
order of the churches. We presume it to be 
within the knowledge of ministers and elders 
generally, and such inquiry as we have been able 
to make abundantly confirms the impression, that 
hurtful misunderstandings not infrequently arise 
between the Trustees and the Session, less fre- 
quently between Deacons and Trustees, as to their 
mutual relations and duties. Contentions thus 
begun are hard to settle, and sometimes are car- 
ried to the civil courts, to the scandalizing of the 
Church, but often burn, half smothered for years, 
marring the harmony of the Church. These mis- 
understandings are due, we believe, chiefly to the 
absence in our organic ecclesiastical law (Form 
of Government) of any provision whatever for 
the existence of Trustees, or any definition of 
their functions and sphere of duties, designating 
their due relation to the Session, and providing 
for the peaceable adjustment of any misunder- 
standings. It is increased by the fact that the civil 
legislation in the different States regulating the 
powers of such Trustees varies widely in the 
different States, and is often very imperfectly 
understood both by ministers and elders, and by 


Trustees themselves, and much more by the body © 


of the laity, and sometimes, too, it seems to be 
shaped to suit the usages of other denominations 


-* 


SESSION AND TRUSTEES T5 


rather than our own, so that financial management 
based upon it cannot be in entire accord with the 
genius of Presbyterian government. 

“It is true that the various decisions of our 
General Assembly and of the civil courts have 
done much to correct these evils, but they have 
not prevented, and cannot wholly prevent, occa- 
sional conflicts of authority with regard to such 
matters as the management of the music, the 
care of the Church property, and its use for other 
than strictly congregational purposes, and in gen- 
eral to that class of matters where the care of 
temporal affairs affects directly the watch and 
care of souls. 

“The Committee are impressed with the feeling 
that the nexus between these interests is a delicate 
one, and that the adjustment of the functions of 
the two bodies which are charged respectively 
with the temporalities and spiritualities, is a 
delicate and difficult task. On the other hand, 
a definition of these mutual rights and duties 
cannot be made mathematically exact. Much 
must be left to Christian tact and prudence. On 
the other hand, it is exactly the absence of clear 
and authoritative direction which has often pro- 
duced unhappy conflict between brethren, and 
even where no conflict exists, there is often a lack 
of that cordial and sympathetic feeling so neces- 
sary to mutual helpfulness. They, therefore, 
would recommend to the Assembly, the adoption 
of a deliverance given below; but before propos- 
ing this, they beg to call attention to the follow- 


16 THE RELATIONS OF 


ing suggestions for the cure of these evils, made 
by the Chairman of the Committee. The Com- 
mittee have taken no action upon it, but regard 
it as deserving the attention of the Church and 
of some further inquiry before being either 
accepted or rejected. 

“It is suggested by the Chairman that the As- 
sembly might overture the Presbyteries to amend 
the Form of Government (Chap. VI, Of Dea- 
cons): ‘To them may be committed the tem- 
poral affairs of the Church,’ so as to read, “To 
them should ordinarily be committed,’ etc., and 
then follow this by a more explicit definition of 
the duties of Deacons, and their relation to the 
Session, providing for their being empowered 
(when it was possible) to act as Trustees under 
the civil law. Such an amendment should not 
make this practice obligatory for all churches 
without variation, but should recognize it as 
desirable wherever possible. There should then 
be an alternative practice recognized in the Form 
of Government, consisting of the one now gen- 
erally prevalent by Boards of Trustees, whose 
relation to the Session and Deacons could then - 
be better defined in the Form of Government 
itself and regulated. 

“Such a change as this would encourage our 
congregations to seek to attain to a diaconal man- 
agement so far as possible, without compelling 
them thereto. The reasons for it can only be 
briefly stated here. 

“It is certainly contrary to sound Presbyterian- 


SESSION AND TRUSTEES I 


ism, or to safe government of any kind, to com- 
mit affairs so important as the revenues of our 
congregations, which aggregate (see ‘Minutes,’ 
1892, p. 750) upwards of $10,000,000 yearly, to 
a body of officers whose warrant for existence 
is wholly extra-constitutional, and whose actual 
conduct of affairs may be, and sometimes is, 
in open disregard of our organic law, and that 
without adequate remedy save by appeal to the 
civil courts. 

“Tt is no answer to this to say, what is gladly 
admitted, that the general management of affairs 
by Trustees is prudent and useful, or that the 
general body of Trustees are excellent brethren. 
The fault lies not in the administrations of the 
system, but in the system itself. This system 
has great advantages, but these advantages might 
all be retained while its evils were avoided, by 
simply giving to the managers of temporal affairs, 
by whatever name called, a proper standing in 
ecclesiastical law, prior to and not conflicting 
with their civil law warrant. 

“Tt is known to the Committee that this ar- 
rangement of a double tenure of office is actually 
in vogue in some of our congregations, and that 
it works satisfactorily. A similar practice obtains 
in other churches of the Presbyterian family, 
while in general it may be said that most of the 
Protestant churches of Europe and America make 
the control of temporalities part and parcel of 
their ecclesiastical law, subjecting it to far 
more stringent regulations than we have ventured 


18 THE RELATIONS OF 


on. It might be added that the office of Deacon, 
so generally disused among us (three-fifths of 
all our churches being wholly without deacons), 
seems to have been shorn of its powers and dig- 
nities and then disused altogether, partly by 
reason of the general transfer to the Trustees of 
what naturally belonged to the Deacons. The 
appropriate remedy, and the only real cure, for 
the faults of our management of congregational 
funds would seem, therefore, to be a revival of 
the spiritual office, making the Deacons ordinarily 
the managers of temporal affairs and e.-officio 
Trustees, though allowing variations from this 
by means of an alternative practice which should 
be duly legitimatized and regulated” (1893 Min- 
utes, G. A., pp. 87-90). 


From all the foregoing, three truths will 
be evident :— 

(1) That “the Session is charged with 
maintaining the spiritual government of the 
congregation,’ incidental to which, it is 
given power to “supervise the Sabbath 
school and the various societies or agencies 
of the congregation.” The Session has, 
also, expressly been given “exclusive author- 
ity over the worship of the congregation, in- 
cluding the musical service,” over all relig- 
ious services, and over “‘the uses to which 
the church buildings may be put.” With 


SESSION AND TRUSTEES 19 


relation to the control of the Session over 
the uses to which the church buildings may 
be put, if the Session see fit temporarily to 
delegate the determination of such uses to 
the body having management of the tem- 
poral affairs of the church, such temporary 
delegation is limited by the organic law of 
the church to be “subject to the superior 
authority and direction of the Session.” 

(2) That, while the Form of Government 
expressly provides for the existence of the 
body known as the Session, and confers on ~ 
that body paramount authority over the re- 
ligious interests of the congregation, yet the 
Form of Government does not provide for 
the existence of a body known as the Board 
of Trustees, nor does the Form of Govern- 
ment require that in all cases the temporali- 
ties of the church shall be held or adminis- 
tered by a Board of Trustees, but allows that 
the Board of Deacons may likewise act in 
that capacity. 

(3) That the rights, powers, authority, 
jurisdiction, and duties of the Trustees can- 
not be determined solely by ecclesiastical 
law, but must primarily be determined by 
the statute law of the place where the par- 


20 THE RELATIONS OF 


ticular church is located, and the general 
principles of the law of trustees as adminis- 
tered by the courts of the State or jurisdic- 
tion in which such church is situated, and in 
cases where some of the members of the par- 
ticular church are citizens of a State other 
than the State under the laws of which the 
church is incorporated, or of which some of 
its officers are citizens, the law of trustees, 
as administered by the United States Courts, 
will also enter as a determining factor. 

In an act of the General Assembly relating 
to the records of congregational meetings 
and Boards of Trustees, providing that “the 
rule is not discretionary, but mandatory, 
that the church Session shall order the incor- 
poration of proceedings of congregational 
meetings with their own records,” and 
further providing how said rule is to be 
construed, the General Assembly enacted as 
follows: “This construction of the rule in 
question is to be understood to apply to the 
proceedings of trustees in all cases in which, 
under the laws of the places where they ex- 
ercise their functions, their action is subject 
to review by the Session” (1887 Minutes of 
the General Assembly, 117, 118). 


SESSION AND TRUSTEES 21 


From this it is evident that the General 
Assembly recognizes that the law of the place 
must control, and that in some places the 
action of the Board of Trustees, in certain 
cases at least, is not subject to review by the 
Session. 

In an act of the General Assembly in the 
year 1897 (Minutes, pp. 136, 139; Presby. 
Dig., p. 880), in which it was determined 
who shall be entitled to vote “at elections for 
trustees or other persons to manage the tem- 
poral affairs,” the General Assembly 
expressly added the following proviso: 
“Provided, That nothing in this regulation 
shall be valid which contravenes the provis- 
ions of the laws of any of the States, of the 
United States, or of special church charters.” 
Doubtless, without this proviso, the civil 
courts would have ignored the act of the 
General Assembly in so far as, in any par- 
ticular jurisdiction, it contravened the pro- 
visions of the civil law, but I cite this pro- 
viso to show the recognition by Presbyterian 
authority of the fact that the law of the State 
where the church is located, and the laws of 
the United States, and the church charter 


22 THE RELATIONS OF 

2 
(if there be one) are, after all, the para- 
mount authority to which all must bow. 

In similar strain, Dr. J. A. Hodge, in his 
work on church government, entitled “What 
is ‘Presbyterian “Law,*, says? (pee 
“In some Presbyterian churches also the so- 
ciety is a distinct body (under the State law) 
from the congregation and from the church. 
In others the word is used to designate the 
congregation. As a separate body, how- 
ever, it is foreign to our Form of Govern- 
ment.” We thus see that the State law 
sometimes introduces features into Presby- 
terian churches which are not contemplated 
by the Constitution of the Presbyterian 
Church, but, under such circumstances, the 
State law, and not the Presbyterian law, 
must prevail. I may here remark parenthet- 
ically that the records of some Presbyterian 
churches show that the word “Society” has 
been applied to the ecclesiastical organiza- 
tion, while the word “Congregation” has 
been used in connection with the corporation, 
or legal association. That this usage is in- 
correct, and that the words “congregation” 
and “society” (including the word “corpor- 
ation” in some States) mean the same thing, 


SESSION AND TRUSTEES 23 


and something different from the word 
“church,” is evident from the following au- 
thorities :— 

Wilson vw. Presbyterian Church, 2 Rich. Eq. 
(a) Cat.), 198. 

Robertson v. Bullions, 9 Barb. (N. Y.), 64. 

First Baptist Church v, Witherell, 3 Paige 
(N. Y.), 301, Chancelor Walworth. 

24 Am. & Engl. Encl. of Law (2d ed.), 327, and 
cases there cited. 

Idem, 340. 

Before taking up the question of the pre- 
cise relations between the Session and Board 
of Trustees of Presbyterian churches, with 
a view of determining their status in rela- 
tion to each other, and in relation to the law, 
I will quote from the work of Dr. Hodge 
referred to before (p. 40), certain general 
propositions on this subject, for which Dr. 
Hodge cites his authorities in footnotes, but 
with relation to which it is probably hardly 
worth while going into detail in this pam- 
phlet :-— 

“What power have Trustees over church 
property? This is determined by the char- 
ter and the State laws. “They have no moral 
right to convert the house of God into a 
place of business or amusement.’ So the O. 


24 THE RELATIONS OF 


S. Assembly declared in 1860. In 1863 it 
gave a fuller deliverance: That ‘the custody 
and care of the property pertains to them for 
the uses and purposes for which they hold 
the trust’—that is ‘for the worship of God 
and the employment of such other means of 
spiritual improvement as may be consistent 
with the Scriptures, and according to the or- 
der of the Church.’ “The Session is charged 
with the supervision of the spiritual interests 
of the congregation; and this includes the 
right to direct and control the use of the 
building for purposes of worship.’ “The 
Trustees are bound to respect the wishes and 
action of the Session as to the use and occu- 
pation of the house of worship. The Ses- 
sion is the organ or agent through whom the 
Trustees are informed how and when the 
church building is to be occupied; and the 
Trustees have no right to refuse compliance.’ 
If the house is desired for other purposes 
than for worship, the Trustees may refuse, 
but they have no right to grant it for pur- 
poses which the Session disapprove. If 
they go contrary to the expressed wishes of 
the Session, the proper appeal is first to 
the congregation, to whom the Trustees are 


SESSION AND TRUSTEES 25 


responsible, then to the Presbytery, and 
finally, if necessary, to the legal- tribunals. 
In 1874 our Assembly decided ‘that the Con- 
stitution of our church charges the Session 
with the supervision of the spiritual interests 
of the congregation, and all the services and 
matters pertaining thereto; and that any 
action by the Board of Trustees unauthorized 
by the congregation, tending to annul or 
contravene in any way such supervision and 
control, is illegal and void;’ ‘that, as regards 
the church building, Sabbath-school and 
lecture room, the Trustees have no right to 
grant or withhold the use of either against 
the wishes or consent of the Session.’ ” 

It may be slightly in the nature of a sur- 
prise to some persons, judging from the way 
in which the matter is commonly discussed, 
to learn that in the case of a church which is 
incorporated the title to the property is not 
in the Board of Trustees of that church. 

The so-called Trustees of such incorpor- 
ated body are not trustees in the ordinary 
sense, nor are they trustees in the sense in 
which that term is commonly used in rela- 
tion to ecclesiastical property. The Trustees 
of incorporated churches are merely the di- 


26 THE RELATIONS OF 


rectors of the corporation. The corporation 
itself supplies the place of the ordinary 
trustees, to hold the title to property (Pot- 
ter on Corporations, p. 691, sec. 565). 

It being true that the corporation owns the 
property of the church and of the corpora- 
’ tion and the revenues thereof, we may say 
that the fact that the trustees of the church 
are directors of the corporation which owns 
everything, rather than mere trustees of the 
realty, might be held to enlarge their 
powers, rather than to restrict them. It 
makes them answerable to the corporation 
for their acts, and not to the Session. In 
other words, there are two bodies in the 
church that have authority—the Session 
(under the Presbyterian Form of Govern- 
ment), and the corporation (under the laws 
of the particular State). | 

In this connection, two things should be 
noted :— 

(1) The Trustees must act as a board. 
“The trustees of a religious corporation are 
the only persons empowered to bind a cor- 
porate body, and in order to execute this 
power they must meet as a board, deliberate, 
and decide. The separate and individual 


SESSION AND TRUSTEES 27 


action of the trustees without meeting and 
consulting together as a board, even though 
a majority in number should agree upon a 
certain act, is not binding upon the corpora- 
tion, and cannot of itself create a corporate | 
liability ; nor is their action in the meeting of 
the whole body of corporators, or of another 
and larger class in which they are but a com- 
ponent part, a valid corporate act. It seems, 
however, that they may delegate power to 
one of their number, or to another person, 
or may ratify or approve the acts of one of 
the board acting for them” (24 Am. and 
Engl. Encl. Law (2d ed.), p. 344; Roberts’ 
“Manual for Ruling Elders,” p. 383). 

(2) This rule applies equally to the Ses- 
sion. As the Supreme Court of the United 
States said: “The possession of the elders, 
though accompanied with larger and more 
efficient powers of control, is still a fiduciary 
possession. It is as a session of the church 
alone that they could exercise power. Ex- 
cept by an order of the Session in regular 
meeting, they have no right to make any or- 
der concerning the use of the building; and 
_ any action of the Session is necessarily in 
the character of representatives of the 


28 THE RELATIONS OF 


church body by whose members it was 
elected,’ (Watson v. Jones, 13 Wallace, 
679; Roberts’ “Manual for Ruling Elders,” 
p. 386). 

In view of the fact hereinbefore set forth 
that the corporation owns the property of the 
church, including its revenues, it appears 
that the following resolution offered at the 
church meeting of a certain Presbyterian 
church (resolutions of like tenor, it is be- 
lieved, being frequently adopted by Presby- 
terian churches) was inappropriate, out of 
order, and utterly inconsistent with the fact 
of the existence of the corporation :— 


“Resolved, that the Church ‘Society hereby 
authorize and direct the Board of Trustees of the 
corporation to collect all subscriptions, dues, and 
contributions to the church society or to the cor- 
poration, and to take charge of and manage all 
the finances and disburse same in meeting the 
obligations of the society and corporation, subject, 
however, to the laws and usages of the Presby- 
terian Church, excepting, however, special col- 
lections and contributions to and for regular 
benevolent funds— which motion was adopted 
unanimously.” 


Without such a resolution of the church 
meeting, the Trustees or Directors of the 


SESSION AND TRUSTEES 29 


Corporation would properly have done the 
very thing that they were supposed by this 
resolution to be thereby authorized to do. 
Their authority to do so arose not from any 
such resolution of the church meeting, but 
by virtue of the fact of incorporation. To 
be consistent with the fact that a church is 
organized as a corporation, having Directors 
or Trustees duly authorized by its Constitu- 
tion to transact its secular and business af- 
fairs, that resolution should have been 
omitted. The fact that this resolution was 
offered in the past merely shows that the 
method of managing the affairs of Presby- 
terian churches when the same have been in- 
corporated, was not clearly understood, and 
this resolution appears to be a relic of that 
mode of administration which was custom- 
ary in unincorporated church bodies where 
the title to the real estate was held by real 
Trustees, or where, as in the States of New 
Jersey, Maryland, etc., the Trustees them- 
selves are incorporated, and the Trustees 
constitute the corporate body. In this con- 
nection, it may be well to say that the method 
of administering church affairs which is pro- 
vided for by the incorporation of the congre- 


30 THE RELATIONS OF 


gation has been recognized and recom- 
mended by Presbyterian authority ( Roberts’ 
“Manual for Ruling Elders,” p. 373). It 
is, also, highly desirable that each particular 
local or individual church be incorporated, 
so as to constitute a body capable of receiv- 
ing bequests or devises by will, for, if not 
incorporated, such a church is only what is 
known in law as a voluntary association and 
incapable as such to receive or hold the title 
to property, according to the decisions of the 
courts in certain, though not all, jurisdictions 
(19 Harvard Law Review, p. 202). 

Five methods of holding and administer- 
ing church property are enumerated in Rob- 
erts’ “Manual for Ruling Elders” (pp. 372, 
373). There Dr. Roberts says :— 


“While the provisions of the statute laws for 
the holding of the property of religious societies 
or churches differ greatly in the several States 
in matters of detail, only five general methods are 
in use—viz. :-— 

“t, CHURCH AS THE CorPORATION. Where the 
churches themselves become corporations upon 
the execution and filing of articles of association, 
or by securing charters in accordance with law, 
as in such States as Indiana and Pennsylvania. 

“2, TRUSTEES AS THE CORPORATION. Where the 


SESSION AND TRUSTEES 31 


churches are authorized to elect trustees, said 
trustees being constituted the corporation, as in 
such States as Maryland, Montana, and New 
Jersey. 

“3. TRUSTEES APPOINTED BY THE Courts. Where, 
as in Virginia and West Virginia, trustees are 
appointed by the courts for the churches, in order 
to secure their property rights. 

“4, CORPORATION SOLE. Where, as in the Roman 
Catholic Church, the property is held by the 
bishop. Delaware has legislation prohibiting this 
method of holding church property. In Oregon, 
however, special legislation has been secured, per- 
mitting this method. 

“5. INDIVIDUAL TRUSTEES. Where members of 
the congregation, three or more in number, are 
appointed to hold the property, and are legally 
the trustees. Unincorporated churches where- 
ever located, will be protected, as a rule, in their 
property rights by the courts. It is advised that 
all such churches take steps, where possible, to 
hold their property by corporations, and that in 
the drafting of charters, of articles, and of by- 
laws, the aid of competent counsel be secured. 

“6. Att CHuRCH Property Is A_ Trust. 
Whether the property of churches be held by 
corporations or by individual trustees, whatever 
the method, the property is in law a trust, and 
the civil courts will protect that trust.” 


“The powers of a religious society and of 
its officers and members are derived from the 


32 THE RELATIONS OF 


statute under which it is organized, and are 
limited only by the provisions of the statute 
and the constitution of the society” (24 Am. 
and Engl. Encl. Law (2d ed.), p. 343). 

This brings us to the enunciation of a 
fundamental principle of the law as applied 
to the administration of the temporal affairs 
of a church by its officers, if incorporated, 
or by its trustees, if unincorporated, namely, 
that “the power of trustees is not arbitrary ; 
nor is it discretionary, but they hold the 
property according to the discipline, rules, 
and usages, of the denominations.” 


24 Am. & Engl. Encl. Law (2d ed.), p. 344; 
State ex rel, Watson v. Farris, 45 Mo. 183; Prick- 
ett v. Wells, 117 Mo. 502, 504; Roberts’ “Manual 
for Ruling Elders,” pp. 378, 379, 384, 385, 386; Brun 
nenmeyer v. Buhre, 32 Ill. 183; Curd v. Wallace, 
7 Dana (Ky.), 190; 32 Am. Dec. 85; Isham vw. 
Dunkirk First Presby. Church (Supm. Ct. Spec. 
TE: ), 63° How. PrewCNeY..), A465) Y orkebitstek es 
formed Presby. Church v. Bowden (Supm. Ct. 
Gen. T.), 14 Abb. N. Cas. (N. Y.), 356; Baptist 
Congregation v. Scannel, 3 Grant Cas. (Pa.), 
48; Watson v. Jones, 13 Wallace, 679; State v. 
Crowell, 9 N. J. Law, 390; but see Watson v. 
Garvin, 54 Mo. 353. 


SESSION AND TRUSTEES 33 


On this subject Dr. Roberts, in full accord 
with a large number of legal decisions, says: 
“Where a congregation is affiliated with a 
denomination, the laws and usages of the 
denomination are of force in the congrega- 
tion, and cannot be set to one side. For 
this reason the deliverances of the General 
Assembly have an important bearing on the 
powers of the trustees. Where the civil law 
is silent, the ecclesiastical law is operative” 
(Roberts’ “Manual for Ruling Elders,” p. 
386). To the same effect, see Potter on 
Corporations, p. 697, sec. 571. 

“The American system of ecclesiastical 
law is an entirely independent system, un- 
influenced by that of England or by the 
common law of any other country. It is 
based upon, and governed by, statute laws 
of? the various States:>. .. .: The bet- 
ter to accomplish the purposes of their being, 
religious corporations have been created by 
statute in nearly all the States of the Union. 
The statutes enacted generally for the in- 
corporation of religious societies provide, in 
an easy and popular manner, one nearly uni- 
form system, for the purpose of managing 
with more facility and advantage the tem- 


34 THE RELATIONS OF 


poralities belonging to the church or con- 
gregation. Religious societies so incorpor- 
ated, are not ecclesiastical corporations, as 
in England. In this country, they are only 
regarded as civil corporations, governed by 
the ordinary rules of the common law pecu- 
liar to themselves. The society itself is in- 
corporated ; its members are the corporators. 

The great and paramount duty of 
the trustees of religious corporations is to see 
that the temporalities committed to their 
charge are fairly and fully devoted to the 
purposes which the founders had in view. 
All authority conferred upon them is neces- 
sarily subordinate to this great end; and all 
exercise of it beyond the legitimate attain- 
ment of this end is usurpation. It is the duty 
of the civil courts of law to enforce the per- 
formance of their duty by trustees of relig- 
ious corporations, unless that performance 
involves some violation of the law of the 
land. It is no excuse for an aberration from 
such duty for such officers to say that they 
have been directed to, or are sustained in 
their action by, a majority of those from 
whom they owe their appointment. When 
such questions arise, the civil courts will 


SESSION AND TRUSTEES 35 


recognize the established denominational 
rules and practice of the several churches 
in the control of their temporalities. 

The legal tribunals, however, have no juris- 
diction over the church, or the members 
thereof as such, nor have the ecclesiastical 
judicatories any authority to interfere with 
the temporalities of a religious society or 
congregation” (Potter on Corporations, 
secs. 563, 564, 571). 

“Tf the trustees of a religious society 
which has the legal control of the temporal- 
ities of a congregation abuse the trust im- 
posed in them and misapply the funds of the 
society, the court has power at common law 
to compel them to account for the misap- 
plication, notwithstanding statutory provis- 
ions excepting religious corporations from 
the visitorial power of the court” (24 Am. 
and Engl. Encl. Law (2d ed.), p. 350). 

“Tf any trustee fails in his duty or violates 
his trust the society may, by proper proceed- 
ings, remove him and fill his place with an- 
other, and the courts will recognize the va- 
lidity of the act and enforce it. The act of 
the church in deposing the officers must, 
however, be founded upon some semblance 


36 THE RELATIONS OF 


of legal process” (24 Am. and Engl. Encl. 
Law (2d ed.), p. 342). 

Trustees may, however, exercise discre- 
tion. “Courts cannot control the discretion 
of trustees in the management of church 
funds so long as they do not violate their 
charter; they are responsible to their con- 
stituents alone” (24 Am. and Engl. Encl. 
Law (2d ed.), pp. 352, 353). 

“In the regulation of their temporal con- 
cerns religious societies, acting as corporate 
bodies under the statute, must be governed 
by majorities acting within the scope of their 
authority and proceeding according to law. 
The majority must, however, be a majority 
of the members appearing at a regular meet- 
ing of the society. A meeting of the church 
members, as such, is not a meeting of the 
incorporated society, and it cannot instruct 
the trustees in their duties or assume any 
power over them” (24 Am. and Engl. Encl. 
Law (2d ed.), p. 360). 

An election of trustees of a Presbyterian 
church is void if made by those who do not 
contribute their just proportion to the neces- 
sary expenses of the church, according to 
their own engagements or the rules of the 


SESSION AND TRUSTEES 37 


congregation, the Constitution of the Presby- 
Petian |Church ino thesUy So “A. giving 
the right to vote, in such election, to those 
only who thus contribute (State v. Crowell, 
9g N. J. Law, 390). 

In People v. Tuthill, 31 N. Y., 550, it was 
held, however, that an election held by a re- 
ligious society is not to be set aside and de- 
clared void, merely because certain illegal 
votes were received, which did not change 
the result of the election. 

“The title to property acquired by an in- 
corporated religious society in its own name 
is in the corporation. The possession by the 
trustees of the society is possession by the 
society. The trustees do not hold the prop- 
erty in trust for the corporation, but their 
relation to the society is the same as that 
of directors” (North St. Louis Christian 
Church v. McGowan, 62 Mo., 279, 288; 
First Baptist Church v. Robbeson, 71 Mo., 
326, 332, 333; 24 Am. and Engl. Encl. Law 
(2d ed.), 362, citing People v. Fulton, 11 N. 
Y.,.94; Bowen v. Irish Presby. Congrega- 
tion, 6 Bosw. (N. Y.), 245; Van Deuzen wv. 
Presbyterian Congregation, 4 Abb. App. 
Dec. (N. Y.), 465; Watson v. Jones, 13 


38 THE RELATIONS OF 


Wall., 679; Miller v. Gable, 2 Den. (N. Y.), 
492; Organ Meeting House v. Seaford, 1 
Devy-Eq, CGNs: Gara) 7457): 

“Where the ownership is in the society, 
the Trustees cannot convey the property 
without the consent of the owners, and a 
statute conferring such authority upon them 
is unconstitutional” (24 Am. and Engl. 
Encl. Law (2d ed.), p. 366). 

It is advised that in no case should a ma- 
jority of the trustees be noncommunicants, 
and that at least one ruling elder be placed 
on the board” (Roberts’ ‘““Manual for Rul- 
ing Elders,” p. 380). That the majority of 
the Board shall be members of the Church is 
obligatory by the constitution of some 
churches. 

“Whether the trustees constitute the cor- 
poration, as in New Jersey, or whether they 
are officers of the incorporated congregation, 
as in Pennsylvania (and other States), they 
should hold regular meetings for the trans- 
action of business. The time of these meet- 
ings should be fixed in the by-laws of the 
corporation” (Roberts’ “Manual for Ruling 
Elders,” p. 381). 

In the foregoing, while some items have 


SESSION AND TRUSTEES 39 


been included for mere information, yet, 
taken all together, we now have before us a 
body of legal and ecclesiastical principles 
which will enable us, possibly with the help 
of other authorities yet to be cited, to deter- 
mine, to a certain degree, what should be 
the relations of the Trustees to the Session. 
On this subject Dr. Roberts says :— 


“The relation between the Session of the 
church and the trustees of the congregation 
should be at all times fraternal and helpful. At 
least once a year the Session and the Trustees 
should meet to consider together the financial 
condition of the organization. Further, it would 
be well if both bodies should come to a clear 
understanding as to their respective powers. 
... The Session is the superior body, both by 
civil and ecclesiastical law. The churches are 
required by the General Assembly to report an- 
nually, through the Session, to the Presbytery, 
the sums expended for congregational expenses. 
The trustees, therefore, should report annually to 
the Session upon such expenses, as matters of 
information” (Roberts’ “Manual for Ruling 
Elders,” p. 384). 


While the principle hereinabove set forth, 
that the Session is a body superior to the 
Board of Trustees, is clear enough, yet diff- 
culties arise in the application of the princi- 


40 THE RELATIONS OF 


ple to concrete cases because, beyond ques- 
tion, each body has certain jurisdiction and 
authority on which the other ought not to 
encroach. In some cases, very close ques- 
tions of jurisdiction arise. It is not at all 
evident how the abolition of the Board of 
Trustees and commission of the care of the 
temporalities to the deacons, or provision 
that the deacons shall ex officio constitute 
the Board of Trustees would mend matters. 
Differences of opinion and conflict of author- 
ity between the deacons and the Session 
would then arise as now, under the present 
system, between the Trustees and the Ses- 
sion. The only sure way to prevent such 
conflicts would be to constitute the Session 
ex officio the Board of Trustees. In this con- 
nection it may be well enough to repeat the 
words of the Committee of the General As- 
sembly as set forth near the bottom of page 
15 of this paper. Says the Committee: “A 
definition of these mutual rights and duties 
cannot be made mathematically exact. Much 
must be left to Christian tact and prudence. 
On the other hand, it is exactly the absence 
of clear and authoritative direction which 
has often produced unhappy conflict between 


SESSION AND TRUSTEES AI 


brethren, and even where no conflict exists 
there is often a lack of that cordial and sym- 
pathetic feeling so necessary to mutual help- 
fulness.” 

Notwithstanding the doubt thus ex- 
pressed, the General Assembly in 1891 laid 
down the law as follows (1891 Minutes G. 
A., p. 187) :-— 


“The Constitution of our church charges the 
Session with the supervision of the spiritual inter- 
ests of the congregation and all services and mat- 
ters pertaining thereto; and any action by the 
Board of Trustees tending to annul or contravene 
in any way such supervision and control is illegal 
and void.” 


Of course, the jurisdiction of the Trustees 
in certain cases is clear enough; for instance, 
after a fire, to adjust and receive payment 
of the insurance. It would rather seem that 
the cases of questionable jurisdiction would 
generally originate with the Session, on ac- 
count of their interpretation of the scope of 
“the spiritual interests of the congregation 
and matters pertaining thereto.” This latter 
would seem, for instance, to include the 
printing of a roster of the members of the 
church. 


42 THE RELATIONS OF 


It having been shown above what is the 
general nature and scope of the authority 
that is conferred on the Session, it would 
seem that the citation of a few concrete cases 
as illustrative examples of how this author- 
ity has been construed will serve a useful 
purpose. 

In deciding a conflict over the possession 
of the church building of the Walnut Street 
(Louisville, Ky.,) Presbyterian Church, the 
Supreme Court of the United States, inter 
alia, said :— 

Lhe trustees obviously hold possession for 
the use of the persons who, by the Constitution, 
usages, and laws of the Presbyterian body, are 
entitled to that use. They are liable to removal 
by the congregation for whom they hold this 
trust; and others may be substituted in their 
places. They have no personal ownership or 
right beyond this, and are subject, in their official 
relations to the property, to the control of the 


Session of the church” (Watson v. Jones, 13 
Wallace, 679). 


In a case where it was proposed that the 
charter of a Presbyterian Church should 
confer on the Trustees the selection of the 


church organist “subject to the approval of 
the Session,” the court said :— 


SESSION AND TRUSTEES 43 


“Applying the fundamental law of the Pres- 
byterian Church which gives the direction otf the 
public worship to the minister and church Ses- 
sion, and the rules of law which define the rights 
of members in church organizations to the ques- 
tion submitted to us in this case, we think that 
the exceptions to the proposed fourth amendment 
to the charter are well taken and must be sus- 
tained. The amendment proposes to give power 
to the trustees to appoint an organist, subject to 
the approval of the Session. The duties of an 
organist are connected with the public worship. 
This is solely under the control of the minister 
and church Session. It is a violation of the funda- 
mental law of the Church to place this power 
in the hands of the trustees, even though it be 
qualified by requiring the approval of the Ses- 
sion. If provision be made by the congregation 
or the trustees for the employment of an organist, 
the exclusive power of appointment, direction, 
and removal of him belongs to the church Ses- 
sion; otherwise they have not that direction of 
the public worship which by the law of the Pres- 
byterian Church is committed to them” (Walnut 
Street (Philadelphia, Pa.) Church Case, 7 Phila. 
Reports, 310; 3 Brewster, 277). 


From what is said in the case last cited, it 
would appear that the custom of some Pres- 
byterian churches of electing a Music Com- 
mittee is unconstitutional; nor, it would 
seem, could such a committee be legally 


44 THE RELATIONS OF 


appointed by the Session. Possibly, if the 
Session were to appoint an advisory. com- 
mittee with whom the Session could advise 
from time to time, such action would be 
legal, providing that said committee were 
not empowered with any supervisory or ex- 
ecutive functions, and were created by the 
Session, and not by the Church, and gee to 
give information to the Session. 

In the minutes of a meeting of the Board 
of Trustees of a Presbyterian Church, the 
following is to be found :— 

[A member] presented several bills for printing 
the programmes of the church services and weekly 
bulletins. After discussion on motion by [a 
member] duly seconded, it was decided that the 
bills for the printing mentioned already incurred 
shall be paid, but [a member] was instructed ta 
notify ... [the] Chairman of the Session com- 
mittee having the matter of said bulletins in 
charge, that no more bills for programmes and 


bulletins will be approved for payment by the 
Board of Trustees.” 


In the course of the investigation of eccle- 
siastical and civil law necessary to the prepa- 
ration of this pamphlet, I framed a hypothet- 
ical question based on this action of the 
Board of Trustees of that Presbyterian 


SESSION AND TRUSTEES 45 


Church, and submitted same to Dr. William 
H. Roberts, Stated Clerk of the -General 
Assembly, who is recognized as an authority 
on Presbyterian law and usages. Dr. Rob- 
erts replied to me as follows :— 


“In reply to yours of May eighth, I have to 
state that the action of the trustees of a Missouri 
church, assuming to have power to audit and pay 
bills incurred by the Session of the church, in 
connection with weekly meetings, is not in ac- 
cordance with Presbyterian law and usage. We 
have the same general legislative system as to 
church corporations in Pennsylvania which you 
have in Missouri, and Pennsylvania courts have 
consistently held that in all things connected with 
the management of churches, excepting the care 
of the church edifices,,the Session was the gov- 
erning body.” 


The authority of the Session to require 
the corporation to pay the bills referred to is 
evident, not alone from Dr. Roberts’ letter, 
but from the power conferred by Section 6, 
Chapter IX, of the Form of Government, to 
maintain “the spiritual government of the 
congregation” and “to supervise” every 
“agency of the congregation” (see page 
10). It appears, also, from Section 7, 
Chapter IX, of the Form of Government, 


46 THE RELATIONS OF 


providing, inter alia, that “the Session shall 
have and exercise exclusive authority over 
the worship of the congregation” (see page 
10). It appears, furthermore, from the 
Act of the 1891 General Assembly (1891 
Minutes, p. 187; see page 41), charging 
“the Session with the supervision of the 
spiritual interests of the congregation and 
all services and matters pertaining thereto.” 

It will be perceived that, with two bodies 
thus having authority to draw on the treas- 
ury of the corporation for matters belonging 
to their respective jurisdictions, the Trustees 
for what they regard as temporal matters, 
and the Session for what they deem the spir- 
itual interests of the congregation, the ex- 
chequer could easily be depleted by either in 
ignorance of the fact that the other had 
planned a heavy draft upon it. If the Board 
of Trustees were a mere “Ways and Means 
Committee” created by the Session, it would 
be wise for the Session to confer with such 
committee before undertaking any expense, 
particularly any unusually large one or any 
expense in the nature of a fixed or perma- 
nent outlay, to have the benefit of the opin- 
ion of those conversant with the financial 


SESSION AND TRUSTEES 47 


matters of the corporation as to whether the 
income of the corporation in view of its out- 
go justified the proposed expense for the 
contemplated object. No man can hope to 
know everything; and, if the members of 
the Session devote themselves to the super- 
vision of spiritual matters, they will natur- 
ally not be equally familiar with the financial 
affairs of the corporation, particularly as 
the financial records are kept by the Board 
of Trustees. It would seem, therefore, 
that the Session might possibly avoid mis- 
takes as well as friction by consulting the 
Board of Trustees about financial matters. 
This would in no sense be an abdication of 
its authority by the Session, but would 
merely be doing what the Session unques- 
tionably would do if it had committed the 
management of temporal matters to a com- 
mittee composed of members of its own 


body. 


4 


Date Due 


IN U.S.A. 


a 
W 
FE 
= 
4 
a 


Eee 


PHOTOMOUNT 
PAMPHLET BINDER 


PAT. NO. 
877188 


Sap ton ne ne eee mS oe ee 
Se ee ee ee ne ee 


ae 


Manufactured by 
GAYLORD BROS. Inc. 

Syracuse, N. Y. 

Stockton, Calif. 


’ 
t 
I 
! 
, 
\ 
| 
t 

Hi 


ie 
Lj 
te 
iH 
ii 


t 7 
» 
io ’ ¥ 
; ity 
Hi 
yl! 
it : 
ii ; 
i ; 
| e i 
by z 
4 it Stn 
i} ; 
qj 4 
i , 
(| ; 
} 
i 
anit 
Heit 
cinta 
# ait . 
t oy Aa 
4 ye A 
Hii 
Bt Fie 
i tre} 
a 
5 ‘4 : Se 
< 
h ak 


